Terms of Service

This acknowledges that you have read the Terms of Use (“Terms”) carefully before using any functionality on the Factor Allocator™ website located at www.FactorAllocator.com (“Factor Allocator™” or “Website”). Factor Allocator™ is owned and operated by Optimal Asset Management Inc. (“Optimal,” “we” or “us”).

Factor Allocator™ may be used exclusively by institutional investors and investment advisers registered with the U.S. Securities and Exchange Commission (“SEC”) and their investment adviser representatives. Neither the Website or its results may be used with members of the public. By utilizing the Website, you acknowledge that you are an institutional investor, a registered investment adviser, or a registered representative of a registered investment adviser.

Please read these Terms carefully before using Factor Allocator™. By using Factor Allocator™ you acknowledge that you have read these Terms and agree to be bound by them. If you do not aree to all of the terms and conditions of this Agreement, you are not an authorized user of these services, and you should not use this website for any purpose.

We reserve the right to change, modify, add or remove portions of these Terms at any time for any reason. Optimal reserves the right to cease providing this Website and content of such information (or any portion or feature thereof) at any time or frequency and without notice. You agree to review theses Terms periodically for such changes. Such changes are effective immediately upon posting. You acknowledge that by accessing the Website after we have posted changes to these Terms, you are agreeing to these terms as modified. If you disagree with any of these Terms, your sole remedy is to discontinue your use of Factor Allocator™.

1. Disclaimer

Optimal provides tools and information that are intended to help you better understand various alternatives for investing in equity securities. All content Optimal provides on Factor Allocator™, including the Materials (as defined in section 8 below) and all other text, graphics, images, and other content, is provided for informational purposes only.

Neither the information, nor any opinion, contained on this Website constitutes a solicitation or offer by Optimal or its affiliates to buy or sell any securities, futures, options or other financial instruments, nor shall any such security be offered or sold to any person in any jurisdiction in which such offer, solicitation, purchase, or sale would be unlawful under the securities laws of such jurisdiction. Nothing contained on the Website constitutes tax, accounting, regulatory, legal, insurance or investment advice. Decisions based upon information contained on this Website are the sole responsibility of the user. In exchange for using this Website, the user agrees to indemnify and hold Optimal, its officers, directors, employees, affiliates, agents, licensors and suppliers harmless against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from your use of this Website, from your violation of these Terms or from any decisions that the user makes based upon such information.

The investments and strategies discussed in the Website may not be suitable for all investors and are not obligations of Optimal or its affiliates or guaranteed by Optimal or its affiliates. Optimal makes no representations that the contents are appropriate for use in all jurisdictions, or that the transactions, securities, products, instruments, or services discussed on this site are available or appropriate for sale or use in all jurisdictions or countries, or by all investors or counterparties. By making available information on the Website, Optimal does not represent that any investment vehicle is available or suitable for any particular user. All persons and entities accessing the Website do so on their own initiative and are responsible for compliance with applicable local laws and regulations.

No Provision of Investment Advice

This Website is for information purposes only and is not intended to be relied upon as a forecast, research or investment advice. The information on this Website does not constitute a recommendation, offer or solicitation to buy or sell any securities or to adopt any investment strategy. Although this material is based upon information that Optimal considers reliable and endeavors to keep current, Optimal does not assure that this material is accurate, current or complete, and it should not be relied upon as such. Any opinions expressed on this Website may change as subsequent conditions vary.

3. Performance Disclaimers; Limitation on Back-Tested Performance

IMPORTANT: ALL “REPLICATED” OR CREATED HYPOTHETICAL PORTFOLIOS AND RELATED DATA USED ON THE SITE, INCLUDING THAT USED TO PRESENT THE BEST FACTOR FIT AND MANAGER VALUE-ADDED IS BACK-TESTED OR SIMULATED, and should be used for EDUCATIONAL purposes only. Back-tested or simulated data is achieved by means of the retroactive application of a simulation model developed with the benefit of hindsight, and does not represent actual results, results that could have been achieved, or results that could be achieved in the future. Model or simulated returns have significant inherent limitations, including that they do not reflect actual trading and may not reflect the effect that material economic and market factors may have had on the adviser’s decision-making had the adviser actual managed client funds; actual results will differ. In addition, the corresponding results have inherent limitations, including:

The results do not reflect the results of actual trading using client assets,

The results do not reflect the investment of dividends in the same way that an investor might, nor the deduction of transaction, custodial or advisory fees, the deduction of which would have the effect of decreasing performance results and increasing the “Manager Value-Added” of any real fund that is compared,

Back-tested performance does not reflect the impact that any material market or economic factors might have had on an adviser’s investment decision-making with regard to actual client assets; however, the results for the compared real fund were subject to those factors,

Not all securities were in existence in the universe throughout the time periods provided, and

In earlier time intervals, the universe of securities may have been different, yielding different performance results.

The actual management of a simulated or back-tested portfolio as displayed may not achieve comparable performance results to those shown. In fact, there are frequently significant differences between a hypothetical (or simulated) performance record and the actual performance record subsequently achieved by live trading.

The performance data of the simulated portfolios, which is provided by Optimal, is presented gross of advisory fees, brokerage or other commissions, and any other expenses a client would have paid. The performance of the real mutual funds or ETFs, sourced through Morningstar, is presented net of fees, which creates a performance advantage for the simulated portfolios in every period. Optimal will charge a fee for the management of a simulated model and the client will pay commissions and other fees, which will reduce performance.

Because the user may select any US-based equity mutual fund for comparison purposes, there may be limited basis for the comparison to any pre-built factor index blends available in the system. Optimal’s current clients may have results that differ materially from the results portrayed in the simulated portfolios. Optimal will registered in any jurisdiction as required prior to the provision of investment advice in that jurisdiction. All Materials, including reports generated through the Factor Allocator, is for the use of financial professionals and institutional investors only, and may not be used with members of the public.

Past performance is no guarantee of future results. All investments involve risk and may lose value. The value of your investment can go down depending upon market conditions. Currency exchange rates may cause the value of an investment to go up or down. Alternative strategies involve higher risks than traditional investments, may not be tax efficient, and have higher fees than traditional investments; they may also be highly leveraged and engage in speculative investment techniques, which can magnify the potential for investment loss or gain.

The following factors, among others, could cause actual results to differ materially from simulated data or performance: (1) the introduction, withdrawal, success and timing of business initiatives and strategies; (2) changes and volatility in political, economic or industry conditions, the interest rate environment, foreign exchange rates or financial and capital markets, which could result in changes in demand for products or services or in the value of assets under management; (3) the relative and absolute investment performance of the underlying investment products; (4) the impact of increased competition; (5) the impact of future acquisitions or divestitures; (6) the unfavorable resolution of legal proceedings; (7) the extent and timing of any share repurchases; (8) the impact, extent and timing of technological changes and the adequacy of intellectual property and information security protection; (9) the impact of legislative and regulatory actions and reforms, including the Dodd-Frank Wall Street Reform and Consumer Protection Act, and regulatory, supervisory or enforcement actions of government agencies relating to Optimal, if any; (10) terrorist activities, international hostilities and natural disasters, which may adversely affect the general economy, domestic and local financial and capital markets, specific industries or Optimal; (11) the ability to attract and retain highly talented professionals; (12) fluctuations in the carrying value of Optimal’s economic investments; (13) the impact of changes to tax legislation, including income, payroll and transaction taxes, and taxation on products or transactions, which could affect the value proposition to users; (14) the impact of Optimal electing to provide support to its products from time to time; and (15) the impact of problems at other financial institutions or the failure or negative performance of products at other financial institutions.

BEFORE ACQUIRING THE SHARES OF ANY INVESTMENT FUND BY PURCHASE OR EXCHANGE, IT IS YOUR RESPONSIBILITY TO READ THE FUND’S PROSPECTUS OR OFFERING MATERIALS.

4. “AS IS” Warranty

ALL OF THE MATERIALS AND DATA AVAILABLE ON FACTOR ALLOCATOR™™, AND ALL OTHER CONTENT HEREON, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OPTIMAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. OPTIMAL DOES NOT WARRANT, EITHER EXPRESSLY OR IMPLIEDLY, THAT FACTOR ALLOCATOR™™ WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT FACTOR ALLOCATOR™™ WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OPTIMAL DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS OR ANY OTHER CONTENT ON FACTOR ALLOCATOR™™ IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. Optimal expressly disclaims all liability for errors and omissions in the materials on this Website and for the use or interpretation by others of information contained on the Website. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.

No Reliance on Financial Projections and Other Limitations

Any financial projections or returns shown on the Factor Allocator™ are illustrative examples only, and there can be no assurance that any valuations provided are accurate or in agreement with market or industry valuations. Any investment information contained herein has been secured from sources Optimal believes are reliable, but we make no representations or warranties as to the accuracy of such information and accept no liability therefor. Investors should conduct their own due diligence, not rely on the financial assumptions or estimates displayed on Factor Allocator™, and are encouraged to consult with a financial advisor, accountant, and any other professional that can help you to understand and assess the risks associated with any investment opportunity. The use of any content Optimal provides is at the your own risk. Optimal shall not be liable for your reliance on any incorrect or outdated information on Factor Allocator™. Optimal further assumes no liability or responsibility for any errors or omissions in any of the content of Factor Allocator™ or the information provided to you.

Trademark, Copyright and other Intellectual Property

The content contained on the Website is owned or licensed by Optimal and is protected by applicable copyrights, trademarks, service marks, and/or other intellectual property rights. All trademarks, service marks, logos and trade names on Factor Allocator™™, whether registered or unregistered, including but not limited to “OPTIMAL ASSET MANAGEMENT.” are proprietary to Optimal or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.

Except for the Materials (subject to the license set forth in the next section of these Terms), no portion of Factor Allocator™ may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without Optimal’s prior written consent. Any such modification or use of Factor Allocator™’s content for any purpose not authorized under these Terms is a violation of the copyrights and other proprietary rights of Optimal (or other entities where so indicated). Permission for all uses of Factor Allocator™ other than as expressly authorized under these Terms, including reproducing and distributing multiple copies, or linking to any page at Factor Allocator™), must be obtained from Optimal in advance. The use of Factor Allocator™, or any content available therein, on any other factor allocator or networked computer environment is prohibited. All design rights, compilation rights, and other intellectual property rights in and to Factor Allocator™, in each case whether registered or unregistered, and related goodwill are proprietary to Optimal.

Materials, Restrictions

The investment-related materials specified as available to be downloaded from or other otherwise accessed on Factor Allocator™ are collectively referred to in these Terms as the “Materials.” Optimal grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use and copy solely for your educational purposes any of the Materials that you download from or otherwise access on Factor Allocator™. Except as expressly authorized in the previous sentence, you shall not, directly or indirectly, in whole or in part: (i) copy any of the Materials without Optimal’s prior written consent; (ii) sell, rent, sublicense, distribute, publish, assign or otherwise transfer any rights in any of the Materials without Optimal’s prior written consent; (iii) permit any third party to benefit from the use of any of the Materials via a timesharing, service bureau or similar arrangement; (iv) use any of the Materials in any unlawful manner or for any unlawful purpose; (v) remove or destroy any copyright notices or other proprietary markings on any of the Materials; (vi) do anything which adversely affects Optimal’s right, title or interest in or to the Materials; or (vii) show the materials to any member of the public.

Disclosure of Optimal’s Direct Use

In addition to being a provider of Factor Allocator™ software, Optimal uses Factor Allocator™ in the provision of its investment advisory services. Registration with the SEC does not imply a certain level of skill or training. See Optimal’s Form ADV Part 2 (Form ADV Part 2).

Conditions Relating to Equity Securities

Equity securities are not bank deposits (and thus not insured by the FDIC or by any other federal governmental agency), are not guaranteed by Optimal, and MAY lose value. Neither the Securities and Exchange Commission nor any federal or state securities commission or regulatory authority has recommended or approved any investment or the accuracy or completeness of any of the information or materials provided by or through Factor Allocator. Investors must be able to afford the loss of their entire investment.

10. Prohibited Activities

In using Factor Allocator™, you agree to not:

Implement portfolios generated from Factor Allocator™ without separate investment management agreement between you and Optimal;

Send or otherwise transmit to or through Factor Allocator™ any unlawful, infringing, harmful, harassing, defamatory, threatening, vulgar or otherwise objectionable material of any kind; Misrepresent your identity or affiliation in any way;

Violate any applicable laws or regulations; or

Assist or permit any persons in engaging in any of the activities described above.

11. User-Submitted Information

You agree to exercise caution, good sense and sound judgment in using Factor Allocator™. You are responsible for any information that you transmit to or through Factor Allocator™ (or to us through email). You agree, represent and warrant that any information you transmit to or through Factor Allocator™ (or to us through email) is not misleading and offered in good faith, and that you have the right to transmit such information.

12. Privacy

Optimal may collect and receive the URL you came from, the pages of Optimal website viewed during a visit, every link you click, any search terms that you entered to reach our site, and certain other information regarding your internet use. While we collect this information to better serve you and gather demographic information about our user base, we will not share or sell your personal information to any other third party except as noted herein.

By using the Factor Allocator, you agree that Optimal may provide your personal information (including but not limited to your name, company, email address, phone number and country of origin) to S&P Dow Jones Indices.

13. Cookies

The Website may also use “cookie” technology to measure site activity, determine how you arrived at our site and maintain your identity as you navigate through the website. A cookie is an element of data that a website can send to your browser, which may then store the cookie on your hard drive. Cookies make visiting a website easier for you by saving your preferences while you are at the site. Optimal may use the information from cookies to provide services that are customized to your needs.

14. Morningstar and MSCI

Mutual fund and ETF data selected by the user under My Portfolios, may be either uploaded by the user from his or her own database, or uploaded by the user from Morningstar. Morningstar data includes the US Equity Mutual Fund universe, and is available via Optimal’s license with Morningstar. Morningstar reserves all rights to their data and the data is: (1) is proprietary to Morningstar and/or its content providers; (2) may not be copied or distributed; and (3) is not warranted to be accurate, complete or timely. Neither Morningstar nor its content providers are responsible for any damages or losses arising from any use of this information.

With regard to data provided by MSCI, neither MSCI nor any other party involved in or related to compiling, computing or creating the MSCI data makes any express or implied warranties or representations with respect to such data (or the results to be obtained by the use thereof). All such parties hereby expressly disclaim all warranties of originality, accuracy, completeness, merchantability or fitness for a particular purpose with respect to any of such data. Without limiting any of the foregoing, in no event shall MSCI, any of its affiliates or any third party involved in or related to compiling, computing or creating the data have any liability for any direct, indirect, special, punitive, consequential or any other damages (including lost profits) even if notified of the possibility of such damages. No further distribution or dissemination of the MSCI data is permitted without MSCI’s express written consent.

Neither Optimal, nor Factor Allocator™, is responsible for the completeness or accuracy of Morningstar or MSCI data.

15. Links to Other Sites

Factor Allocator™ may establish links between the Website to other sites operated by third parties. If you use these links, you will leave Factor Allocator™. Certain of these linked sites may make use of Optimal’s intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from Optimal. We have no control over any such other websites, the contents therein, or the products/services offered, nor are we responsible for the availability of these other sites or for any viruses or other damaging elements encountered in linking to a third-party site, whether or not Optimal is affiliated with the owners of such sites.

The existence of any such links shall not constitute an endorsement of, or representation or warranty by Optimal regarding such websites, the contents of the websites, the products or services of the websites or the operators of the websites. Your access to and use of such linked websites is governed by the terms of use and privacy policies of those sites, and shall be at your own risk. Optimal disclaims responsibility for the privacy policies and customer information practices of third-party internet websites hyperlinked from our Website.

16. Links from Other Sites

You shall not display hyperlinks on your websites to any website owned or operated by Optimal. If you desire to display on your website a hyperlink to the Website, you must enter into a written agreement with Optimal governing such display. Access to any Optimal website does not authorize you to use any of Optimal’s names, logos, trademarks or copyrighted material, and you agree not to do so without Optimal’s express written consent. Requests to display hyperlinks on your websites to Optimal’s websites should be e-mailed to info@optimalam.com.

17. E-mail and Marketing

Financial professionals who complete the registration process to access the Website are at the same time granting Optimal permission to send them e-mail messages for marketing and general communication purposes at the e-mail address they have provided. This service may be discontinued at any time by responding to the email with “Unsubscribe” in the subject line.

18. Termination

Optimal may terminate your use of Factor Allocator™ at any time in our sole discretion. Upon any such termination, you agree to destroy any Materials or any other content obtained from Factor Allocator™ and all copies thereof. The provisions of these Terms concerning Factor Allocator™ security, prohibited activities, copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity, and jurisdictional issues shall survive any such termination.

19. Limitation of Liability

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, Optimal, its officers, director, employees or agents will not be liable to you or anyone else for any damages of any kind, including but not limited to, Direct, consequential, incidental, special or indirect damages (including but not limited to lost profits, trading losses, or damages that result from the use of loss of use of this Website), even if Optimal has been advised of the POSSIBILITY OF SUCH DAMAGES OR LOSSES, INCLUDING, WITHOUT LIMITATION, FROM THE USE OR ATTEMPTED USE OF THIS WEBSITE OR ANOTHER LINKED WEBSITE. IF YOU LIVE IN A STATE THAT DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

20. Security/Transmissions to and from this Website

You are prohibited from violating, or attempting to violate, the security of Factor Allocator™. Optimal will investigate any alleged or suspected violations and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations. Therefore, any such violation may result in criminal and/or civil penalties against you.

Electronic communications can be intercepted by third parties and, accordingly, transmissions to and from this Website may not be secure. Optimal makes no warranty to you regarding the security of the Website, including with regard to the ability of any unauthorized persons to access information received or transmitted by you through or from the Website. Communications to Optimal, particularly those containing confidential information, may be sent by mail to: Optimal Asset Management, Attn: Webmaster. Optimal shall be free to use, for any purpose, any ideas, concepts, know-how, or techniques provided by a user to Optimal through this Website. You acknowledge and agree that Optimal has granted you limited access to the specific files (“Approved Files”), and you agree not to attempt to access computer files other than the Approved Files.

21. Jurisdiction

Factor Allocator™ is controlled and operated by Optimal from its offices within the United States. Optimal makes no representation that Materials or any other content available on Factor Allocator™ are appropriate or available for use in other countries. Those who choose to access Factor Allocator™ from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent such laws are applicable. Access to Factor Allocator™ from jurisdictions where the contents of Factor Allocator™ are illegal or penalized is prohibited. No information or software from Factor Allocator™ may be downloaded or otherwise re-exported (i) into or to a national or resident of any country to which the United States embargoes or sanctions goods, services or technology; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals (found at: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx) or the U.S. Commerce Department’s Table of Denial Orders (http://www.bis.doc.gov/index.php/the-denied-persons-list). By using information or software or Materials from Factor Allocator™, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

22. Governing Law, Severability, Arbitration Agreement

These Terms shall be interpreted in accordance with the laws of the State of California without reference to its conflict of law provisions. If any provision of these Terms is unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the subject matter herein.

Any dispute, claim or controversy arising out of or relating to Factor Allocator™ or these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Altos, California before a panel of three neutral arbitrators, unless the matter in controversy is within the scope of an applicable small claims court’s jurisdiction. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not preclude Optimal or you from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Note that there is no judge or jury in an arbitration proceeding and the decision of the arbitrator shall be binding upon both parties. When we process personal data and information and personally identifying information in the United States, we follow United States data protection and privacy regulations.

23. Timeliness of Content

All content on this Website is presented only as of the date published or indicated, and may be superseded by subsequent market events or for other reasons. In addition, you are responsible for setting the cache settings on your browser to ensure you are receiving the most recent data.

24. Password Security and Notification

Certain parts of the Website are protected by passwords or require a login and are restricted to authorized users only. You may not obtain unauthorized access to such parts of the Website, or to any other protected materials or information, through any means not intentionally made available by Optimal for your specific use. If you have a Personal Identification Number (PIN) for access to non-public areas of the Website, you are solely responsible for all activities that occur in connection with your PIN. Accordingly, you should take all reasonable steps to protect the confidentiality of your PIN. Notify Optimal immediately if you become aware of any disclosure, loss, theft or unauthorized use of your PIN.

25. Unauthorized Use of Content

You agree to defend, indemnify and hold harmless Optimal, its affiliates and each of their respective officers, directors, members, partners, managers and employees against any losses, damages, claims, liabilities and costs and expenses (including but not limited to reasonable attorneys’ fees) to the extent resulting from or arising out of any unauthorized or otherwise inappropriate use of any of the content of this Website attributable to you or which occurs through the use of your ID.

26. System Outages and Incomplete Transmissions

Internet software or transmission problems may produce inaccurate or incomplete copies of information and materials that may be downloaded and displayed on a user’s computer. Optimal is not liable for any damages, changes, or omissions that occur during transmission of information and materials.

27. Waiver

No waiver by Optimal of any right under or term or provision of these Terms will be deemed a waiver of any other right, term, or provision of these Terms at the time of such waiver or a waiver of that or any other right, term, or provision of these Terms at any other time.

Questions

If you have any questions regarding these Terms, please submit your questions via an email to info@optimalam.com. We will endeavor to respond to you promptly.